AS TO THE ADMISSIBILITY OF

                      Application No. 13372/87
                      by A.
                      against Austria


        The European Commission of Human Rights sitting in private
on 8 September 1988, the following members being present:

              MM. C.A. NØRGAARD, President
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  H. VANDENBERGHE
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY

             Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 7 October 1987
by A. against Austria and registered on 12 November 1987
under file No. 13372/87;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case as submitted by the applicant may be
summarised as follows:  The applicant is a Yugoslav, born in 1942 and
presently detained in prison of Garsten/Austria.  He is represented by
Dr.  K. Lichtl, a lawyer in Linz.

        On 12 January 1987 the Court of Assizes (Geschworenengericht)
at the Regional Court (Landesgericht) in Linz found the applicant
guilty by seven votes against one of the murder of three persons whom
he had shot in the head from a distance of less than two metres.  The
jury thereby implicitly denied the question, put in eventu, whether the
killing constituted homicide only.

        In the jury's notes (Niederschrift) it is explained that the
murder charge was confirmed because the break of family relations
could not explain the killing of three people.  The killing was
considered as the eruption of internal aggressions.  Furthermore,
the jury found the applicant guilty of unlawful possession of a
firearm.  As to the question of whether or not the applicant was
criminally responsible for the murder the jury followed the expert
opinion according to which the applicant was criminally responsible.

        The applicant was sentenced to sixteen years' imprisonment.

        According to the minutes of the trial the applicant admitted
the killing.  The victims were two women and a man who was the brother
of one of the women and the friend of the other.  This other woman had
formerly been the applicant's concubine.  The applicant had visited
the three allegedly to collect clothes of his children who had
previously lived with their mother, the applicant's concubine.  He
left the children outside in his car.  After some discussion he went
to fetch a pistol which he kept in his car and then returned to the
house where he shot the three persons.  Before the Court he alleged
that he only wanted to frighten the victims.  He also alleged that he
was afraid of the friend of his concubine, who allegedly jumped up and
grasped for a knife.  Allegedly the applicant then shot, without aiming
at a particular part of the body and without knowing how often he
shot.  He had allegedly lost control over himself.

        After the killing the applicant tried to commit suicide but
only hurt himself seriously, causing some brain damage and
necessitating his hospitalisation.

        The expert heard by the Court considered that the killing had
been an emotional act but not an act committed in a state of mind
beyond the applicant's control.  As regards the applicant's alleged
fear of being attacked by the male victim the expert submitted that such
fear might at best have been a marginal circumstance (Randerscheinung),
as otherwise the applicant would not have shot the women likewise.   A
certain imaginative fear could, however, possibly have increased his
tension.

        According to the record of the trial, no motions were
submitted by the defence requesting amendments or supplements to the
questions which had been put to the jury.

        The applicant lodged an appeal (Berufung) and a plea of
nullity.  He complained, inter alia, that the trial court did not put
the question to the jury whether or not in killing the male victim, he
had acted in real or putative self-defence.  Furthermore, he
complained that the question whether the killing constituted murder
or homicide had not been put in respect of each victim separately.

        In its decision of 14 April 1987, the Supreme Court (Oberster
Gerichtshof) stated that the applicant's description of the events
given in the course of the investigation proceedings and at the trial
was contradictory but even if the version given at the trial was
correct, the situation described by him was not such as to justify the
shooting as a defensive measure or to give the applicant the
impression that he had to defend himself by shooting the male victim.

        Furthermore, it had not been necessary, in the opinion of the
Supreme Court, to put the question separately with regard to each
victim whether the killing in each case constituted murder or
homicide.  The Supreme Court pointed out that the jury had been
instructed that they could also answer a question in the affirmative
but with a reservation.  Furthermore, the guidelines for jury members
explained that that question could be answered in part.


COMPLAINTS

        The applicant considers that the criminal proceedings both
before the Court of Assizes and the Supreme Court violated Article 6
of the Convention.  He maintains that the question should have been
put to the jury for their decision whether or not he killed the male
victim in self-defence or in putative self-defence, because the
determination of this question necessitated an evaluation of evidence.
The Supreme Court wrongly evaluated the evidence itself while it would
have been the task of the jury to decide whether or not facts could be
considered to be established which justified the applicant's action as
a measure of putative self-defence.

        The principle of a fair trial also required that the jury be
informed that the question was of importance as to whether the killing
of each of the three victims constituted murder or homicide.  It was
evident that this question raised distinct problems in relation to the
male victim, in relation to his former concubine, who had deceived
him, and in relation to the third victim.  As the jury's attention had
not been drawn to these particular and distinct situations he had been
deprived of the possibility that the jury qualified at least the
killing of the male victim and/or his concubine as an act of homicide
instead of murder.

        Finally, the applicant complains that no reasons are given for
the verdict of a jury and that a convict is consequently deprived of
the possibility of effectively preparing an appeal as he does not know
which consideration lead the jury to affirm his guilt.  While in the
Anglo-Saxon jury trials the transcript of the trial and the judge's
summing up served as a basis to prepare an appeal there was no summing
up under Austrian procedural law and the record of the trial was of no
relevance for the preparation of a plea of nullity in accordance with
Section 345 (1) of the Code on Criminal Procedure (StPO).
13372/87


THE LAW

1.      The applicant has complained that in his trial on charges of
murder or homicide the question was not put to the jury of whether or
not he acted in self-defence vis-à-vis one of the three victims or at
least in putative self-defence.  He further complains that the
question of whether the killing constituted either murder or homicide
only was put globally instead of individually, i.e. in regard of each
victim.

        The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the parties in the Convention.  In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention.  The Commission refers, on this point, to its constant
case-law (see e.g.  No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;  No. 7987/77,
Dec.13.12.79, D.R. 18 pp. 31, 45).

        As to the alleged violations of Article 6 (Art. 6) of the Convention,
the Commission notes that the question of whether or not there had
been a real or imagined self-defence situation was also examined and
denied by the Supreme Court.  This court's finding is however,
contrary to the applicant's submission, not based on the evaluation of
evidence as the Supreme Court proceeded on the assumption that the
applicant's ultimate description of the events was correct.

        The Supreme Court furthermore pointed out that the jury had
been adequately instructed as to the possibility of its answering only
in part or with reservations the questions put to it.

        In this context the Commission also notes that the applicant
did have the possibility of requesting the trial court, in accordance
with Section 310 (3) of the Austrian Code on Criminal Procedure (StPO),
to amend or to supplement the questions that were put to the jury.

        In these circumstances there is no appearance of a violation
of Article 6 (Art. 6) of the Convention and this part of the
application would have had to be rejected as being manifestly
ill-founded within the meaning of Article 27 (2) (Art. 27-2) of the
Convention had the applicant exhausted remedies.

2.      The applicant has further complained that the conviction by
a Court of Assizes under the relevant Austrian procedural law, is
incompatible with the notion of a fair trial within the meaning of
Article 6 (Art. 6) of the Convention because no reasons are stated in the
judgment as to the verdict of the members of the jury and consequently
an effective control of the judgment was impossible.  The applicant
points out that unlike in jury trials before British courts there is,
under the Austrian system, no summing up by the presiding professional
judge.  Furthermore, he submits that according to Section 345 (1)
of the Austrian Code on Criminal Procedure the record of the trial
cannot be the basis for substantive grounds of appeal, unlike the
transcript of the trial before British courts.

        The Commission first points out that it is not competent to
examine in the abstract the compatibility of a given legislative
regulation with the Convention (Eur.  Court H.R., Case of Klass and
others, judgment of 6 September 1978, Series A no. 28, p. 18, para. 33).
As regards the particular circumstances of the proceedings in the
applicant's case the Commission notes that according to the
uncontested content of the record of the trial the applicant had
admitted shooting his former concubine, her new friend and the sister
of the latter.  The Commission further notes that under Section 331 (3)
of the Austrian Code on Criminal Procedure the jury's spokesman has to
indicate in writing the jury's considerations which were determinative
for their answers to the questions put to them by the Court.  This
provision was complied with in the applicant's case and the jury's
notes were available to him.

        In these particular circumstances an examination by the
Commission of this complaint as it has been submitted does not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention and in particular in Article 6 (Art. 6).

        It follows that the application is manifestly ill-founded
within the meaning of Article 27 (2) (Art. 27-2) of the Convention.


        For these reasons, the Commission


        DECLARES THE APPLICATION INADMISSIBLE.


Deputy Secretary to the Commission           President of the Commission





       (J. RAYMOND)                                 (C.A. NØRGAARD)